Upon separation, you will need to consider parenting arrangements for children and/or the division of the matrimonial property pool.
This can be achieved in a number of ways, including:
1. By coming to an agreement between yourselves, without court involvement, and informally dividing up the assets and/or come to an arrangement for your children;
2. If you and your former spouse agree, you can formalise your agreement by:
(a) A parenting plan (parenting matters and parenting arrangements)
(b) Applying for a consent order in the Family Court; and/or
(d) Entering into a binding child support agreement (in respect to child support matters only); or
3. If you cannot agree, you can apply to the court for financial orders which relate to property settlement, spousal maintenance, child support, and parenting matters (for more information, see court process).
Application for consent orders
Once an agreement is reached the following documents will need to be filed in the Family Court of Australia registry:
1. An Application for Consent Orders requesting that the court make orders in the terms of your agreement; and
2. Minutes of consent, which set out the terms of any agreement
There is a filing fee which will need to be paid upon filing the documents. This fee changes from time to time so contact us for the most up to date fee. Once approved by the registrar, a consent order is binding and enforceable as if the matter was decided on a final basis by the court.
Preference for consent orders
The obvious benefit of entering into a consent order is that you do not have to experience the costs and stress associated with litigation.
A consent order is preferred over a financial agreement (in property matters) and a parenting plan (in parenting matters) for the following reasons:
1.The Family Court must be satisfied that the proposes consent order is just and equitable in all circumstances, so the terms are more difficult to set aside;
2. Consent orders can be all encompassing (dealing with property matters, parenting matters, and maintenance);
3. Parenting plans are not binding enforceable, and therefore simply provide a guideline for parenting arrangements and are evidence of an agreement that was reached;
4. Consent orders require the approval of a registrar of the court, and once approved are binding and enforceable upon the parties; and
5. Consent orders are more cost effective because there are less technical requirements than binding financial agreements and it is not mandatory for each person to receive independent legal advice (although it is always recommended to seek independent legal advice when entering into consent orders).
Breaching consent orders
Once sealed by the court, you and your spouse are bound by the terms of the order until they are varied or terminated. The terms will only be terminated in particular circumstances, and can only be varied by further order of the court or by further written agreement.
A breach of a consent order can lead to contravention orders or, in more serious cases, contempt proceedings. They are therefore the most highly recommended method of documenting parenting arrangements and property settlements, as they offer the highest protection for the parties. At Ramsden Lawyers our family lawyers will be able assist you in the best course for your personal situation.